“For a constructive trust remedy to be imposed, Ms. Yao is required to show unjust enrichment. In Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4th) 621 (S.C.C.) the Supreme Court of Canada determined that there are three elements that must be proven on a balance of probabilities in order for a party to succeed in an unjust enrichment claim: (a) an enrichment; (b) a corresponding deprivation; and (c) the absence of juristic reason for the enrichment (at. Page 630).
The leading case by the Supreme Court dealing with unjust enrichment and joint family venture is Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. The Supreme Court stated, at para. 88, that “[a] joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.” At paragraph 100, Justice Cromwell sets out the court’s analysis of the remedies for unjust enrichment:
a. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.
b. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
c. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
d. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.
In order for unjust enrichment to be established, the plaintiff must “demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property” (Kerr, para. 50). The plaintiff must show a “’sufficiently substantial and direct’ link, a ‘causal connection’ or a ‘nexus’ between the plaintiff’s contributions and the property which is the subject matter of the trust” (Kerr, at para. 51). Further, in Kerr, at para. 51, the Supreme Court noted that indirect monetary contributions and direct labour contributions may be sufficient, “provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property.””